RICHARD THORNBURGH, ET AL., APPELLANTS V. AMERICAN COLLEGE OF
OBSTETRICIANS AND GYNECOLOGISTS, ET AL.; EUGENE F. DIAMOND, ET AL.,
APPELLANTS V. ALLAN G. CHARLES, ET AL.
No. 84-495, 84-1379
In the Supreme Court of the United States
October Term, 1985
On Appeal From the United States Courts of Appeals for the Third
and Seventh Circuits
Brief for the United States as Amicus Curiae in Support of
Appellants
TABLE OF CONTENTS
Interest of the United States
Summary of argument
Discussion
Conclusion
INTEREST OF THE UNITED STATES
These cases involve the efforts of two state legislatures to
balance the competing interests at stake in the abortion decision.
Congress has in the past enacted legislation affecting that decision
(see 42 U.S.C. 300a-6; Act of Nov. 20, 1979, Pub. L. No. 96-123,
Section 109, 93 Stat. 926), and may do so again. This Court's
continuing effort to define the perimeters of permissible abortion
regulation has a direct impact upon the ability of the country's
elected representatives -- both state and federal -- to deal with this
important question of great public import and heated political debate.
SUMMARY OF ARGUMENT
The opinions of the courts below are multiply flawed. In their
manifest eagerness to strike down the state statutes in question they
transgress numerous canons of constitutional adjudication: provisions
are construed so as to impugn rather than save their
constitutionality; facts stipulated solely for purposes of a
preliminary injunction are taken as dispositive for an ultimate
judgment on the statute; and provisions repealed and substantially
recast to meet constitutional objections are struck down in their
earlier versions. More substantively, the courts below reach their
conclusions as if this Court in Roe v. Wade had posited only one
value, a woman's unfettered right to an abortion, rather than a
balance of values which include the state's interest in maternal
health and in unborn and future life. The harsh and one-sided nature
of the decisions below may in part be a response to a change in
emphasis in this Court's opinion in Akron v. Akron Center for
Reproductive Health, which itself expressed considerable impatience
with legislative attempts to balance the interests recognized in Roe
v. Wade. To the extent this is so, these cases and Akron itself are
not just wrong turns on a generally propitious journey but indications
of an erroneous point of departure. Indeed, the textual, doctrinal
and historical basis for Roe v. Wade is so far flawed, and, as these
cases illustrate, is a source of such instability in the law that this
Court should reconsider that decision and on reconsideration abandon
it.
DISCUSSION
A. In Roe v. Wade, 410 U.S. 113, 153 (1973), this Court held that
the "right of privacy" emanating from the Due Process Clause "is broad
enough to encompass a woman's decision whether or not to terminate her
pregnancy." But the Court has consistenly rejected the notion that
"the Constitution requires abortions on demand" (id. at 208 (Burger,
C.J., concurring)). Rather, the Court has held, in this and other
contexts, that the right of privacy "is not unqualified and must be
considered against important state interests in regulation" (id. at
154).
Perhaps the dominant governmental interest recognized in the
Court's opinions is the state's "unquestionably strong and legitimate
interest in encouraging normal childbirth," an interest that "exist(s)
throughout the course of the woman's pregnancy" (Beal v. Doe, 432 U.S.
438, 446 (1977)). And the Court has consistently recognized that the
state has "an important and legitimate interest," which likewise
exists throughout pregnancy, in safeguarding the health of the mother
and in maintaining medical standards. E.g., Roe v. Wade, 410 U.S. at
154; Doe v. Bolton, 410 U.S. 179, 194-195 (1973); Planned Parenthood
of Central Missouri v. Danforth, 428 U.S. 52, 80-81 (1976).
In evaluating state efforts to further these legitimate interests,
this Court and its individual Justices have said that a regulation "is
not unconstitutional unless it unduly burdens the right to seek an
abortion." E.g., Maher v. Roe, 432 U.S. 464, 473 (1977) (original
quotation marks omitted). Indeed, the Chief Justice has stated his
understanding that "(t)he Court's holdings in Roe v. Wade * * * and
Doe v. Bolton * * * simply require that a State not create an absolute
barrier to a woman's decision to have an abortion" (Maher v. Roe, 432
U.S. at 481 (Burger, C.J., concurring)).
The decisions below are inconsistent with these principles and
should be reversed. The courts of appeals betrayed unabashed
hostility to state regulation of abortion and ill-disguised suspicion
of state legislators' motives. The courts repeatedly failed "to give
proper weight to the legislative decision, as expressed in the
statute, to protect the life and health of the woman and the child
subject to abortion" (84-495 J.S. App. 170a (Weis, J.)). A persistent
theme of the decisions below is "the notion that normal rules of law,
procedure, and constitutional adjudication suddenly become irrelevant
solely because a case touches on the subject of abortion" (Danforth,
428 U.S. at 98 (White, J., concurring and dissenting)). The decisions
below thus not only "have far-reaching effects" on the abortion issue,
but also "implicate the proper role of the states and the federal
courts" under our Constitution (84-495 J.S. App. 172a-173a (Weis,
J.)).
1. No. 84-495. The Third Circuit signaled its antipathy in the
opening section of its opinion, in which it imputed to the
Pennsylvania legislature "a pervasive invalid intent" to "restrict a
pregnant woman's fundamental right to choose an abortion" (84-495 J.S.
App. 31a, 32a). The court suggested that the legislature was somehow
culpable for enacting "a complex and extensive regulatory scheme * * *
containing numerous provisions which it had been advised skirted
constitutional limits" (id. at 86a). The court faulted the
legislature for passing the abortion bill "after scant debate" (id. at
13a) and for attaching it to another bill the court did not view as
"germane" (id. at 12a & n.3). The court relied heavily (id. at
12a-13a) on newspaper accounts about a co-sponsor's alleged opposition
to Roe v. Wade. And even though the case was on appeal from the
district court's denial of a preliminary injunction, /1/ the court of
appeals reached out to render a final judgment holding most of the
statute unconstitutional, asserting that "(t)he customary discretion
accorded to a district court's ruling on a preliminary injunction
yields to our plenary scope of review" (84-495 J.S. App. 21a).
The court's zeal to place the worst possible construction upon the
Pennsylvania statue is evident from its treatment of the specific
provisions challenged. That treatment is seriously at odds with this
Court's abortion opinions and with basic principles of judicial
review.
a. Section 3206(c) provides that a pregnant minor, without seeking
parental consent, may petition the appropriate court to authorize an
abortion upon a finding that she "is mature and capable of giving
informed consent * * * and has, in fact, given such consent" (18 Pa.
Cons. Stat. Ann. (Purdon 1983)). This provision codifies the holding
in Bellotti v. Baird (Bellotti II), 443 U.S. 622, 648-651 (1979). The
statute provides that such court proceedings "shall be confidential
and shall be given such precedence * * * as will ensure that the court
may reach a decision promptly and without delay" (Section 3206(f)).
The judge must rule "within three business days of the date of
application" (ibid.). The statute mandates an "expedited confidential
appeal" if authorization is denied and directs the Pennsylvania
Supreme Court to issue "such rules as may be necessary to * * * ensure
confidentiality and * * * promptness of disposition" (Section
3206(h)).
The court of appeals "d(id) not invalidate section 3206" (84-495
J.S. App. 56a). The court nevertheless proceeded to enjoin the
statute's enforcement "until the state promulgates (the) regulations"
referred to above (ibid.). This Court has made it clear, however,
that a state is not constitutionally required to have regulations on
this subject, expressing confidence that state courts will expedite
cases involving minors' consent consistently with this Court's
decisions. Bellotti II, 443 U.S. at 645 & n.25. Accord, Planned
Parenthood Ass'n v. Ashcroft, 462 U.S. 476, 491 n.16 (1983). The
court of appeals' action in enjoining enforcement of a state law,
without any finding that it contravenes federal law or the federal
Constitution, is unprecedented and remarkable.
b. Section 3210(c) requires the attendance of a second physician at
abortions performed after viability. This provision, like the
provision at issue in Ashcroft, contains no explicit exception for
medical emergencies (see 462 U.S. at 485 & n.8). The Court in
Ashcroft inferred such an exception under the latter statute and held
it valid (ibid.). The court of appeals refused to infer a comparable
exception under Section 3210(c) here. It did so even though Section
3210(a) provides a "complete defense to any charge brought against a
physician for violating the requirements of this section * * * that
the abortion was necessary to preserve maternal life or health"
(emphasis added). The court justified its holding by asserting that
subsections (a) and (c) are "separated by (an) intervening provision
(viz., subsection (b)) which on its face envinces the Pennsylvania
legislature's unconstitutionally restrictive view of maternal health"
(84-495 J.S. App. 73a). The court's insistence that the statute be
construed so as to create rather than to remove constitutional
problems inverts well-established canons of judicial review.
c. Section 3210(b) provides the method of abortion used when the
fetus is viable must be the one most likely to produce a live birth,
unless that method would cause a "significantly greater" risk to the
mother. The district court, in an effort to discharge its
"oblig(ation) to give the statute (a) reasonable interpretation which
avoids the danger of constitutional invalidity" (84-495 J.S. App.
247a-248a), interpreted "significantly greater" to mean "medically
cognizable," and held the statute as thus interpreted valid under
Colautti v. Franklin, 439 U.S. 379, 400 (1979). The court of appeals
refused to adopt this construction, finding it "inconsistent with * *
* the legislative intent," and accordingly declared the statute
unconstitutional (84-495 J.S. App. 70a). It did so even though the
district court had shown that its saving construction was supported by
a dictionary definition of the relevant words (id. at 248a). And it
did so without even considering the possibility of abstaining to
ascertain whether the Pennsylvania courts might adopt the same
construction that the district court did.
d. Section 3208, entitled "Printed Information," directs the
Pennsylvania Department of Public Health to publish easily
comprehensible pamphlets describing assistance available to pregnant
women through public and private agencies. These pamphlets are to
include the following statement: "The Commonwealth of Pennsylvania
strongly urges you to contact (these agencies) before making a final
decision about abortion" (Section 3208(a)(1). The statute also
directs the Department to publish literature discussing the unborn
child's probable anatomical characteristics and possibility of
survival, provided that such material is "objective, nonjudgmental and
designed to convey only accurate scientific information" (Section
3208(a)(2)).
The court of appeals declared this statute unconstitutional (84-495
J.S. App. 58a-59a). It did not base this holding on a determination
that the section, standing alone, was invalid. Indeed, such a
determination would contravene this Court's ruling that a state may
"make a value judgment favoring childbirth over abortion, and * * *
implement that judgment by the allocation of public funds" (Maher v.
Roe, 432 U.S. at 474). The court of appeals based its holding,
rather, on a determination that Section 3208 was "inextricably
intertwined" (84-495 U.S. App. 58a) with another section which the
court thought unconstitutional. The sole link between the two
sections is a statutory cross-reference (see id. at 137a (Seitz, C.J.,
dissenting)). The court invalidated Section 3208 based on this
supposed "inextricable" connection even though the law contains an
explicit severability clause (ibid.). The court's approach is
unjustifiable and can only be explained as an attempt to censor
printed matter the majority did not like.
e. Section 3205, entitled "Informed Consent," provides that a
woman's consent to abortion will be deemed "voluntary and informed"
only if the referring or the attending physician provides her with
information about the relative medical risks, both physical and
psychological, of abortion and childbirth. The doctor or his agent
must also inform the woman of the availability of certain financial
assistance and social services in the event of childbirth (Section
3205(a)(2)(i) and (ii)). Finally, the doctor or his agent must inform
the woman that she has a right to review, but need not review, the
printed materials described above (Section 3205(a)(2)(iii),
cross-referring to Section 3208).
The court of appeals held this statute unconstitutional, citing
Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416
(1983). The court of appeals inferred that "'much of the information
required * * * is designed not to inform the woman's consent but
rather to persuade her to withhold it altogether'" (84-495 J.S. App.
48a (quoting 462 U.S. at 444)). And the court viewed the statute as
mandating "a litany of information" that intrudes upon the attending
physician's discretion (84-495 J.S. App. 48a-49a (quoting 462 U.S. at
444-445)).
The court of appeals plainly erred. Most of the information
Pennsylvania requires is identical to that which the Court in Akron
deemed "certainly * * * not objectionable," "probably * * * routinely
made available to the patient," and "clearly * * * relaed to maternal
health and to the State's legitimate purpose in requiring informed
consent" (462 U.S. at 445-446 & n.37). It is true that Pennsylvania
requires the doctor himself to provide the relevant medical
information, permitting him to delegate to an assistant the provision
of information about social services, financial assistance, and the
like. Cf. Akron, 462 U.S. at 448-449 (holding that the physician
generally must be allowed to "delegate() the counselling task to
another qualified individual"). But the division of labor
Pennsylvania has adopted is surely a rational one, particularly in
light of this Court's repeated stress on "the central role of the
physician * * * in consulting with the woman about whether or not to
have an abortion" (Colautti, 439 U.S. at 387).
The court of appeals likewise erred in holding that Pennsylvania
cannot require that a woman be informed "(t)hat she has the right to
review" certain printed materials (discussed above) published by the
state health department. This information, unlike that deemed a
"parade of horribles" in Akron (462 U.S. at 445), is required to be
"objective, nonjudgmental and * * * accurate, scientific information"
(Section 3208(a)(2)). Moreover, the woman is free to decide for
herself whether or not she wants to read these pamphlets, and "nothing
in the statute prevents the physician from advising that (she) not
view (them) or disputing or supplementing them with his own
information" (84-495 J.S. App. 140a (Seitz, C.J., dissenting)). This
Court has repeatedly held that the state may promote maternal health
by ensuring that a woman's abortion decision is truly knowing,
voluntary, and informed. It cannot seriously be contended that a
state, by offering a person the right to read objective, nonjudgmental
materials before making a decision, would be held unconstitutionally
to compel or coerce that person's decision in any other legal context.
f. Section 3214(a) requires that "(a) report of each abortion
performed * * * be made to the department on forms prescribed by it."
The physician must report routine statistical information about each
abortion, such as the patient's age and marital status (but not her
identity), the type of abortion procedure used, and any medical
complications resulting therefrom. He must also report the basis for
his determination "that a child is not viable," and, if he determines
that the fetus is viable, to report "the basis for his determination
that the abortion is necessary to preserve maternal life or health"
(Section 3214(a)(8), cross-referring to Section 3211).
The court of appeals held this statute unconstitutional. While
acknowledging that this Court has approved recordkeeping and reporting
requirements for abortions, it asserted that "(t)he nature and
complexity of (Pennsylvania's) requirements * * * have crossed the
permissible threshold" (84-495 J.S. App. 80a). It reasoned that
Pennsylvania's law would "have a significant impact on the woman's
abortion decision" by "increas(ing) the costs of * * * abortions" by
an unspecified amount (id. at 80a-81a).
The court of appeals' reasoning is seriously flawed. The
statistical information Pennsylvania requires to be reported is
information that "most physicians would obtain as a matter of course,
or which is easily obtained through simpl(e) questions or observation"
(84-495 J.S. App. 148a (Seitz, C.J., dissenting)). The court of
appeals had no basis for distinguishing Pennsylvania's recordkeeping
requirements from those approved in Danforth. Compare 428 U.S. at
79-81. The parties' stipulation that Pennsylvania's requirements
would increase abortion costs by an unspecified amount --
recordkeeping requirements always increase costs, a fact that
obviously was equally true in Danforth -- is irrelevant absent
evidence about the magnitude of those expenses. Indeed, a host of
state laws (be they tax laws or regulatory requirements) impose
increased costs on providers of medical services, and it could
scarcely be contended that such laws are therefore unconstitutional.
In any event, the record of this case contains no evidence about the
actual costs imposed by Pennsylvania's reporting requirements, and the
court of appeals thus had "no way of knowing what cost increase is
attributable to (them)" (84-495 J.S. App. 149a (Seitz, C.J.,
dissenting)). Cf. Ashcroft, 462 U.S. at 489-490 (noting district
court's findings as to cost of pathology reports and holding that
those costs imposed "a relatively insignificant burden").
The court of appeals likewise erred in holding that Pennsylvania
cannot require doctors to report the basis for their determinations
about fetal viability and danger to maternal health. It is
far-fetched to suggest, as did the court of appeals (84-495, J.S. App.
81a), that such reporting violates this Court's "directive that a
physician be accorded broad discretion" in making these
determinations. Obviously, a doctor does not have "discretion" to
make unjustifiable and unsupportable judgments about life and death,
and it is neither an affront nor an unreasonable burden to require
that he rationally explain the basis for such decisions. Nor can it
seriously be contended that the need to furnish such explanations
unconstitutionally "chills" physicians' willingness to perform
abortions. It is hard to see how Pennsylvania can enforce its
legitimate interest in protecting fetal life if it is foreclosed from
seeking such information.
2. No. 84-1379. The Seventh Circuit, ruling unanimously, struck
down four sections of the Illinois Abortion Law. The court's decision
ignores elementary principles of jurisdiction, comity and federalism
in its relentless determination to invalidate the challenged
provisions at all costs.
a. Section 6(4) of the Illinois Abortion Law, as enacted in 1979,
prescribed a standard of care for a doctor performing an abortion when
there existed "a possibility known to him" of fetal viability (84-1379
J.S. App. 8). On November 16, 1979, four days before Section 6(4)'s
effective date, the district court issued a preliminary injunction
against its enforcement, finding that it incorporated an
unconstitutional definition of "viability" (id. at 3). In October
1983, the district court converted the preliminary injunction into a
permanent injunction (579 F. Supp. 464, 470-471 (N.D. Ill. 1983)). On
June 30, 1984, while the instant appeal was pending in the Seventh
Circuit, the Illinois legislature amended Section 6(4) (see 84-1379
J.S. App. 9, 58-59). The court of appeals recognized that this
amendment "substantially altered" Section 6(4) and the court
specifically "decline(d) to evaluate (the) constitutionality" of the
current version of the statute (84-1379 J.S. App. 9).
The court of appeals, however, proceeded to declare the repealed
version of Section 6(4) unconstitutional. Rejecting the State's
suggestion of mootness, the court likened the legislature's 1984
revision of the statute to "a defendant's voluntary abandonment" of
prior unconstitutional conduct (84-1379 J.S. App. 18). The court
theorized that the Illinois legislature "could reenact" the repealed
version of Section 6(4), and was persuaded that "such a result would
not be unlikely" inasmuch as the legislature had amended Section 6(4)
twice during the previous five years (84-1379 J.S. App. 19-20). The
court concluded that the State had failed to prove that it would not
"return to its old ways" if plaintiffs' challenge were dismissed (id.
at 20). The court also suggested that the 1983 version of the statute
might have residual "chilling effects" despite its repeal (ibid.).
The court's reasoning is remarkable. The old version of Section
6(4) had been under continuous injunction from the day it was enacted
until the day it was repealed. The statute thus could never have been
applied to anyone, and the controversy concerning its validity was
accordingly moot. Although this Court has recognized a narrow
exception to the mootness doctrine where defendants "voluntarily
abandon" challenged conduct for the purpose of evading judicial review
(City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283 (1982)), we
know of no instance, and the court of appeals cited none, where this
exception has been held to cover a statutory amendment by a state
legislature, which, of course, is not even a "defendant" here.
The court of appeals, moreover, had absolutely no basis for
concluding that reenactment of the defunct, allegedly unconstitutional
statute was likely. The legislature's previous amendments to the law
surely provided no basis for that conclusion, since those amendments,
as the court itself recognized, represented faithful and repeated
attempts "to alter the contours of (the) statute to reflect the latest
judicial pronouncements in the area of abortion and privacy" (84-1379
J.S. App. 20). More generally, principles of federalism and comity
make it wholly inappropriate for a federal court to presume that a
state legislature and governor will act in bad faith by repealing and
then reenacting a statute for the purpose of evading judicial review.
/2/
b. Section 6(1) of the Illinois Abortion Law, as amended in 1979,
prescribed a standard of care for a doctor performing an abortion
"after the fetus is known to be viable" (84-1379 J.S. App. 6). On
November 16, 1979, four days before the statute became effective, the
district court preliminarily enjoined its enforcement, finding that it
incorporated an unconstitutional definition of viability (id. at 3).
In September 1983, the Illinois legislature amended the definition of
viability, providing that a fetus is viable "when, in the medical
judgment of the attending physician based on the particular facts of
the case before him, there is a reasonable likelihood of sustained
survival of the fetus outside the womb, with or without artificial
support" (id. at 7, 58). On October 14, 1983, the district court
sustained the amended definition of viability, held that Section 6(1)
was thus constitutional, and lifted the preliminary injunction (579 F.
Supp. at 466, 469). On June 30, 1984, while the instant appeal was
pending in the Seventh Circuit, the Illinois legislature amended
Section 6(1) (see 84-1379 J.S. App. 7, 57-58). The court of appeals
recognized that this amendment "substantially transformed section
6(1)" and the court "accordingly decline(d) to discuss the
constitutionality" of the current version (id. at 7).
Once again, however, the court of appeals proceeded to declare the
repealed version of the statute unconstitutional. Rejecting the
State's suggestion of mootness, the court noted that old Section 6(1)
had operative effect for the eight-month period between October 14,
1983, and June 30, 1984. The court observed that the statute of
limitations had not expired with respect to events occurring during
that period, and hence suggested that the State "could prosecute
plaintiffs * * * if (they) violated (the repealed) section while it
remained in effect" (84-1379 J.S. App. 15). The court found "this
possibility insufficiently speculative to render (their) challenge * *
* moot" (id. at 16).
The court's reasoning is flawed. The State explicitly advised the
court of appeals that it would not initiate prosecutions of the type
appellees assertedly feared (see 84-1379 J.S. 42, 48). Moreover,
appellees brought a facial challenge to Section 6(1) and did not
allege that they performed any late-term abortions during the
eight-month period in question (see id. at 43). The possibility that
appellees might be prosecuted under the old statute is thus too
conjectural to satisfy Article III requirements. See, e.g., Los
Angeles v. Lyons, 461 U.S. 95, 101-110 (1983); Poe v. Ullman, 367
U.S. 497, 507 (1961).
On the merits, the court of appeals held the old version of Section
6(1) unconstitutionally vague. That statute made it illegal, in the
case of a pregnancy termination "after the fetus is known to be
viable," for "(a)ny physician or person assisting in such a pregnancy
termination" intentionally to fail to manifest a specified standard of
care. The court found the statute vague because it "does not specify
* * * which party, physician or assistant, must make this viability
determination" (84-1379 J.S. App. 26).
As noted above, the Illinois legislature in September 1983 had
amended the statute's definition of "viability" so as to make the
determination of viability depend on "the medical judgment of the
attending physician." It would have required no great leap of logic
for the court of appeals thence to infer that the legislature meant
the determination of the attending physician, not of his assistant, to
govern under old Section 6(1). Indeed, the 1984 amendment to Section
6(1) makes this explicit. See 84-1379 J.S. App. 57-58. We think that
a fair reading of the statute compelled this construction of the 1983
version. In any event, this construction was plainly permitted, and
the court of appeals was obliged to adopt that permissible
construction under the well-settled principle that federal courts
should construe state statutes in a manner favoring their
constitutionality.
c. Section 2(10) of the Illinois Abortion Law defines an
"abortifacient" as any substance or device "known to cause fetal
death." Section 11(d) requires any person who prescribes or
administers a substance or device "which he knows to be an
abortifacient" to tell the recipient "that it is an abortifacient."
Intentional or reckless failure to provide this information is a
misdemeanor.
The court of appeals held these two provisions unconstitutional
(84-1379 J.S. App. 43). The court did not suggest that Section
2(10)'sdefinition of "abortifacient' is inaccurate. Nor did it
suggest that it is unconstitutional for a state to require a doctor
who performs an abortion, or who prescribes an abortifacient, to tell
his patient what he is doing. Indeed, a state in regulating abortions
indisputably may require "the giving of information to the patient as
to just what (will) be done and as to its consequences" (Danforth, 428
U.S. at 67 n.8). Rather, the court invalidated these two provisions
because Section 2(10), in defining "abortifacient," refers to "fetal
death," and because another section of the statute -- Section 2(9),
which was repealed in September 1983 -- formerly defined "fetus" as "a
human being from fertilization until birth" (see 84-1379 J.S. App.
39-40, 60). Reading these three sections together, the court
concluded that Section 11(d) unconstitutionally "foist(s) upon the
pregnant woman (the State's) view that life begins at conception"
(84-1379 J.S. App. 39 (citing Akron, 462 U.S. at 444)).
This line of reasoning is strained indeed. Section 11(d) simply
requires that a doctor, when administering something that is likely to
destroy the fetus, tell his patient that he is administering something
that is likely to destroy the fetus. Destruction of the fetus in such
circumstances is obviously a "consequence" of which the pregnant woman
may be informed (Danforth, 428 U.S. at 67 n.8). Section 11(d) does
not say that the doctor must use the words "abortifacient" or "fetal
death"; he is free to get the message across in any way he chooses.
Moreover, the doctor is not required to refer to, or to say anything
about, the definition of "fetus" formerly contained in Section 2(9).
The pregnant woman presumably knows what a "fetus" is; if not, the
doctor is free to explain it in his own words. All Section 11(d)
requires is that the doctor tell her that she is about to have an
abortion if that is what she is about to have. /3/
Section 11(d) is an entirely reasonable provision designed to
ensure that women seeking birth control assistance understand the
difference between "abortifacients" and "contraceptives." The
difference is significant for many women, whether for physical, moral,
or religious reasons, and the state plainly has a legitimate interest
in ensuring that this difference is explained to them so that they may
make an informed choice. In adopting a strained and illogical
construction of Section 11(d), the court of appeals ignored both the
State's legitimate interests and proper principles of judicial review.
B. The approach of the courts below betrays in our view an extreme
and unseemly hostility to legitimate state regulation of abortion. By
subjecting innocuous, even repealed, statutes to strained
interpretations, apparently for no other reason than to invalidate
them, the courts seemed determined to make regulations so difficult to
sustain that abortions before the third trimester will become
available virtually "on demand" (Roe v. Wade, 410 U.S. at 208 (Burger,
C.J., concurring)). In so doing, the courts relied heavily on this
Court's decision in Akron. See, e.g., 84-495 J.S. App. 20a-21a,
24a-25a, 46a-47a, 48a-49a, 79a; 84-1379 J.S. App. 30, 35-36, 38-39.
It is perhaps not fanciful to suggest that the courts below may have
thought they detected in Akron an undercurrent of impatience with
state efforts to regulate abortion, and to have taken their cue from
that insight.
We believe that Akron does represent something of a departure from
the Court's previous abortion decisions, both in the standard of
review it applies and in the diminished weight it seems to attach to a
state's legitimate interests in this area. In reviewing the instant
cases, therefore, the Court may find it appropriate to consider
whether Akron sent an erroneous message to the lower federal courts.
There are several respects in which we think that might have happened.
1. This Court in Roe v. Wade held that the states have legitimate
interests in protecting fetal life and preserving maternal health, and
that these interests become sufficiently "compelling" at some point
during pregnancy to justify restrictions on, or outright proscription
of, abortion. Until Akron, however, the Court had not suggested that
a state's choice among various alternative means of achieving a given
"compelling" objective had itself to be supported by a compelling
state interest. Rather, provided that the state was pursuing a
"compelling" objective (e.g., health), a particular regulation was
deemed valid if it was "reasonably related" to that objective (e.g.,
was a rational health regulation) and did not "unduly burden" the
woman's freedom of choice respecting abortion. See, e.g., Danforth,
428 U.S. at 80; Beal v. Doe, 432 U.S. at 445; Maher v. Roe, 432 U.S.
at 473.
The Akron decision seems to signal a departure from this analytical
framework. Certain passages in that opinion suggest, for example,
that a state, in crafting a regulation designed to protect maternal
health, must demonstrate a "compelling interest" in selecting one of
several options, each of which represents a rational means of
achieving the state's goal. This is most evident in the Court's
treatment of Akron's "informed consent" provisions. The ordinance
required "the attending physician" to inform his patient of the
relative risks and consequences of pregnancy and abortion (462 U.S. at
446). The Court acknowledged that this information was "clearly
related to maternal health and to the State's legitimate purpose in
requiring informed consent" (ibid.). The Court acknowledged the
importance of having this information conveyed by a "well-trained and
competent counselor()" (id. at 449 n. 41). The Court acknowledged
that its earlier decisions had "stressed repeatedly the central role
of the physician * * * in consulting with the woman about whether or
not to have an abortion" (id. at 447 (oroginal quotation marks
omitted)). And the Court found nothing in the record to "suggest that
ethical physicians will charge more for adhering to this typical
element of the physician-patient relationship" (ibid.). Yet the Court
nevertheless held the ordinance unconstitutional because it required
the attending physician to make the communication, rather than
permitting his assistant to do so. The Court was "not convinced * * *
that there is as vital a state need for insisting" that the
information be conveyed by the one rather than by the other (462 U.S.
at 448).
This holding, in our view, cannot be squared with the Court's
previous opinions. A requirement that the physician convey the
medical information was surely "reasonably related" to Akron's
compelling health objective, and that requirement was not shown to
have increased the cost of abortions by a magnitude sufficient to
impose an "undue burden" on pregnant women's freedom of choice. The
regulation should accordingly have been sustained.
2. Prior to Akron, this Court had consistently recognized that a
State may legitimately "make a value judgment favoring childbirth over
abortion" (Maher v. Roe, 432 U.S. at 474). "The Constitution," the
Court had said, "does not compel a state to fine-tune its statutes so
as to encourage or facilitate abortions," and hence the fact that a
regulation "may inhibit some (women) from seeking abortions is not a
valid basis to void the statute" (H.L. v. Matheson, 450 U.S. 398, 413
(1981)). To the contrary, the Court had held that "state action
'encouraging childbirth except in the most urgent circumstances' is
'rationally related to the legitimate governmental objective of
protecting potential life'" (ibid., quoting Harris v. McRae, 448 U.S.
297, 325 (1980)).
Certain passages in Akron again seem to signal a departure from
these principles. The Court in Akron suggested, for example, that a
state regulation is invalid if it is "designed to influence the
woman's informed choice between abortion or childbirth" (462 U.S. at
444 (footnote omitted)). On that premise, the Court struck down
provisions requiring that certain information be furnished to a woman
contemplating an abortion, reasoning that the information was
"designed * * * to persuade her to withhold" her consent to that
procedure (ibid.).
Once a woman steps into an abortion clinic, however, there is no
way a state can promote its legitimate policy of "encouraging
childbirth" without at the same time "discouraging abortion." A woman
who enters "an abortion clinic, where abortions for pregnant minors
frequently take place," is presumably inclined to terminate her
pregnancy, and it is "unlikely that she will obtain adequate counsel
from the attending physician at an abortion clinic," much less be
dissuaded from her proposed course. Bellotti II, 443 U.S. at 641
(original quotation marks omitted). Indeed, as a doctor at one of the
clinics involved in Akron testified, when a teenager showed up at the
clinic he assumed the decision was made: "When you go to a bar, you
go there to drink" (81-746 Resp. Br. 20). Obviously, no state can
promote a policy of "encouraging normal childbirth" in such
circumstances unless it is allowed to place a counterweight in the
other side of the scales.
The Akron majority thus had little basis in precedent for
suggesting that state action is unconstitutional per se if it is
"designed to influence the woman's informed choice between abortion or
childbirth." If the state's interest in encouraging childbirth is to
mean anything, and if the woman's consent to abortion is to be truly
informed, the state must be allowed, in a reasoned and objective way,
to tell its side of the story, and a story favoring childbirth is a
permissible story for it to tell. Of course, should the state convey
that message in an inaccurate or overbearing fashion, or otherwise
attempt to compel or coerce the woman's decision, her decision would
not be "knowing, intelligent, and voluntary" (Danforth, 428 U.S. at 90
(Stewart, J., concurring)), and the state's action would constitute
"an unduly burdensome interference with her freedom to decide whether
to terminate her pregnancy" (Maher v. Roe, 432 U.S. at 474). But an
effort by the state to influence a pregnant woman to choose childbirth
instead of abortion, in a manner that does not impair her freedom of
choice, can hardly be thought to erect an unconstitutional obstacle.
3. Prior to Akron, this Court's abortion opinions generally
reflected the well-settled rule that federal courts should accord
state statutes a sympathetic construction that favors their
constitutionality. See, e.g., Danforth, 428 U.S. at 64; Bellotti II,
443 U.S. at 645 & n.25; H.L. v. Matheson, 450 U.S. at 406, 407 &
n.14, 412. Once again, however, the Akron opinion seems to suggest a
more hostile approach. This is perhaps most evident in the majority's
treatment of Akron's regulation requiring that physicians performing
abortions "insure that the remains of the unborn child are disposed of
in a humane and sanitary manner" (462 U.S. at 451). The city averred
that this regulation was designed simply "to preclude the mindless
dumping of aborted fetuses onto garbage piles" (ibid. (original
quotation marks omitted)). The Court nevertheless held the regulation
unconstitutionally vague, speculating that "(t)he phrase 'humane and
sanitary' does, as the Court of Appeals noted, suggest a possible
intent to mandate some sort of decent burial of (the) embryo" (ibid.
(original quotation marks omitted)).
This approach is difficult to reconcile with the Court's previous
opinions. Akron's ordinance was surely susceptible of a
constitutional construction. The phrase "humane and sanitary" appears
in countless laws regulating health and safety. Congress has even
mandated the "humane * * * disposal of excess wild free-roaming horses
and burros" (43 U.S.C. 1901(a)(6)). As a familiar regulatory formula,
the phrase "humane and sanitary" resembles the phrase "informed
consent," which the Court in Danforth held not to be vague (see 428
U.S. at 67 n.8). In striking down the Akron formula based on
speculation that the draftsmen of the ordinance might have intended to
mandate "some sort of decent burial" (462 U.S. at 451), the Court in
Akron may have invited the kind of unsympathetic statutory
construction, the temptation to impugn legislative motives, that the
courts of appeals engaged in here.
C. Having said this, candor compels us to state our conviction that
Akron is a symptom, not the source, of the problem. As the decisions
below demonstrate, the constitutional inquiry mandated by Roe v. Wade
is not easy for courts to conduct in a principled fashion. The key
factors in the equation -- viability, trimesters, the right to
terminate one's pregnancy -- have no moorings in the text of our
Constitution or in familiar constitutional doctrine. Because the
parameters of the inquiry are indeterminate, courts are disposed to
indulge in a free-ranging, essentially legislative, process of
devising regulatory schemes that reflect their notions of morality and
social justice. The result has been a set of judicially-crafted rules
that has become increasingly more intricate and complex, taking courts
further away from what they do best and into the realm of what
legislatures do best.
We recognize that the principle of stare decisis, furthering as it
does the policies of continuity and consistency of adjudication,
weighs against reconsidering recent precedents. See Atascadero State
Hospital v. Scanlon, No. 84-351 (June 28, 1985), slip op. 9-10 n.3;
Akron, 462 U.S. at 420 & n.1. This principle, however, does not count
so strongly in constitutional litigation, where, short of a
constitutional amendment, this Court is the only body capable of
effecting a needed change. See Akron, 462 U.S. at 420; Glidden Co.
v. Zdanok, 370 U.S. 530; 543 (1962). Moreover, this Court must
respond to obligations that transcend the institutional concerns
underlying the doctrine of stare decisis. See Erie R. Co. v.
Tompkins, 304 U.S. 64, 77-78 (1938) ("If only a question of statutory
construction were involved, we should not be prepared to abandon a
doctrine so widely applied throughout nearly a century. But the
unconstitutionality of the course pursued has now been made clear and
compels us to do so.") (Brandeis, J.)). Where a judicial formulation
affecting the allocation of constitutional powers has proven "unsound
in principle and unworkable in practice," where it "leads to
inconsistent results at the same time that it disserves principles of
democratic self-governance," this Court has not hesitated to
reconsider a prior decision. Garcia v. San Antonio Metropolitan
Transit Authority, No. 82-1913 (Feb. 19, 1985), slip op. 18.
1. To provide a regime for delimiting the permissible scope of
abortion regulation, Roe v. Wade divided pregnancy into three
trimesters, with radically different consequences for state regulatory
power in each. This analytical framework has proved inherently
unworkable. Subsequent developments, both technological and medical,
have demonstrated the arbitrariness of these lines: the Court "simply
concluded that a line must be drawn, * * * and proceeded to draw that
line" (Garcia, slip op. 14 (original quotation marks omitted)).
Arbitrary line-drawing may occasionally be necessary to make explicit
constitutional rights efficacious, but such arbitrariness gains the
appearance of legislation pure and simple where the subject is one
upon which the Constitution is silent.
The Court in Roe v. Wade properly recognized that the states have a
strong interest in safeguarding maternal health, but it is difficult
to grasp why the compelling quality of this interest should undergo a
radical change at the end of the first trimester. The Court made a
determination -- basically one of legislative fact -- that "until the
end of the first trimester mortality in abortion may be less than
mortality in normal childbirth" (410 U.S. at 149, 163). The
legislative nature of this finding is shown by "evidence that
developments in the past decade, particularly the development of a
much safer method for performing second-trimester abortions, * * *
have extended the period in which abortions are safer than childbirth"
(Akron, 462 U.S. at 429, n.11). The fact that Akron, despite this
evidence, retained the end of the first trimester as the sharply
determinative point demonstrates that point's essential arbitrariness.
As Justice O'Connor wrote in dissent, "The fallacy inherent in the
Roe framework is apparent: just because the State has a comptelling
interest in ensuring maternal safety once an abortion may be more
dangerous than childbirth, it simply does not follow that the State
has no interest before that point that justifies state regulation to
ensure that first-trimester abortions are performed as safely as
possible" (id. at 460) (emphasis in original).
It was similarly arbitrary for the Court in Roe v. Wade to
determine that the state's legitimate interest "in protecting prenatal
life" (410 U.S. at 150, 153-154) undergoes a constitutionally
significant change at the point of fetal viability. There is no
obvious constitutional connection between the ability of a fetus to
survive outside the womb, and the magnitude of a state's lawful
concern to protect future life. As Justice O'Connor said in her Akron
dissent, "(P)otential life is no less potential in the first weeks of
pregnancy than it is at viability or afterward. * * * The choice of
viability as the point at which the state interest in potential life
becomes compelling is no less arbitrary than choosing any point before
viability or any point afterward" (462 U.S. at 461) (emphasis in
original).
The "viability" standard is particularly unworkable as a
constitutional reference point because it changes with advances in
technology. The "increasingly earlier fetal viability "demonstrated
in recent scientific studies (462 U.S. at 457 (O'Connor, J.,
dissenting)) obviously owes to improvements in medical techniques, and
not to any change in our perceptions about how fully developed or
worthy of life a fetus is at any point in time. It is disturbing to
attribute constitutional significance to a point which, besides being
in motion rather than being fixed, has its movements dictated by
advances in engineering rather than by forces more familiar to
traditional judicial analysis.
The arbitrary nature of Roe v. Wade's analytical framework is
reflected in the increasingly complex line-drawing of its progeny. A
state may require that certain information be furnished to a woman by
a doctor or his assistant (Akron, 462 U.S. at 448), but may not
require that such information be furnished to her by the doctor
himself (id. at 449). A state may require that second-trimester
abortions be performed in clinics (Simopoulos v. Virginia, 462 U.S.
506 (1983)), but may not require that they be performed in hospitals
(Akron, 462 U.S. at 437-439). As each set of these subtle
distinctions was crafted, still more unanswered questions were posed.
During the decade since Roe v. Wade the adversaries in the abortion
debate have come back again and again, asking this Court to spin an
ever-finer web of regulations. The adversaries are back again today.
They are sure to return. Each time, the set of rules will get longer
and more intricate. This is an inappropriate burden to impose on any
court, or on any Constitution.
2. The second, compelling ground for our urging reconsideration of
Roe v. Wade is our belief that the textual, historical and doctrinal
basis of that decision is so far flawed /4/ that this Court should
overrule it and return the law to the condition in which it was before
that case was decided.
There is no explicit textual warrant in the Constitution for a
right to an abortion. It is true, of course, that words, and
certainly the words of general constitutional provisions, do not
interpret themselves. That being said, the further afield
interpretation travels from its point of departure in the text, the
greater the danger that constitutional adjudication will be like a
picnic to which the framers bring the words and the judges the
meaning. Constitutional interpretation retains the fullest measure of
legitimacy when it is disciplined by fidelity to the framer's
intention as revealed by history, or, failing sufficient help from
history, by the interpretive tradition of the legal community. That
tradition is illuminated not only by court decisions, but by the
practice of lawyers and legislatures "in the compelling traditions of
the legal profession." Rochin v. California, 342 U.S. 165, 171 (1952)
(Frankfurter, J.).
We respectfully submit that by these criteria Roe v. Wade is
extraordinarily vulnerable. It stands as a source of trouble in the
law not only on its own terms, but also because it invites confusion
about the sources of judicial authority and the direction of this
Court's own future course. Stare decisis is a principle of stability.
A decision as flawed as we believe Roe v. Wade to be becomes a focus
of instability, and thus is less aptly sheltered by that doctrine from
criticism and abandonment.
a. The ultimate textual source for Roe v. Wade (410 U.S. at 129) is
the Fourteenth Amendment's guarantee: "nor shall any State deprive
any person of * * * liberty * * * without due process of law." It is
late in the day to argue that this provision should be limited to its
apparent textual meaning: government's actually taking hold of a
person, as to confine him, without fair procedures. The expansive
possibilities of "due process," however, early offered temptations
which by all accounts led to one of the most troubled and demoralizing
episodes in our constitutional history, during which the Court
repeatedly frustrated the workings of the ordinary democratic process
by imposing its own debatable and parochial view of appropriate social
policy. E.g., Adkins v. Children's Hospital, 261 U.S. 525 (1923);
Lochner v. New York, 198 U.S. 45 (1905). The now prevailing doctrine
that the Due Process Clause incorporates particular protections of the
Bill of Rights, however controversial on historical grounds, /5/ was
plainly intended to have the function of reining in such judicial
extravagance and reanchoring the interpretation of that Clause in the
constitutional text -- though somewhat downstream of its historical
starting point. See Adamson v. California, 332 U.S. 46, 69-72 (1947)
(Black, J., dissenting).
Viewed in this context, Roe v. Wade seems particularly ill-founded.
Due process analysis, while it must recognize the need to go beyond
scrutiny of the few relevant words of the Clause, must nevertheless
seek a connection with the intentions of those who framed and ratified
the constitutional text. As this Court acknowledged in Roe v. Wade
(410 U.S. at 138-139), however, and as Justice Rehnquist emphasized in
dissent (id. at 174-176 & n.1), state laws condemning or limiting
abortion were very general at the time the Fourteenth Amendment was
adopted. Indeed, the period between 1860 and 1880 witnessed "the most
important burst of anti-abortion legislation in the nation's history"
(J. Mohr, Abortion in America 200 (1978)). Nor does the tenor and
contemporaneous understanding of those laws leave much doubt that they
were directed, not only at protecting maternal health, but also at
what was widely viewed as a moral evil comprehending the destruction
of actual or potential human life (see Mohr at 35-36) and the
undermining of family values in whose definition and reenforcement the
state has always had a significant stake. It is fair to conclude that
those who drafted and voted for the Fourteenth Amendment would have
been surprised indeed to learn that they had put any part of such
subjects beyond the pale of state legislative regulation.
Surely this historical context of the Due Process Clause is
relevant to its interpretation. The most usual and straightforward
use of history is to illuminate the intention of controversial
constitutional texts. The debate about the practices contemporaneous
with the adoption of the Establishment Clause was waged precisely
because it has been thought to bear on that Clause's meaning: either
to show acceptance of considerable state involvement in religion (see
Lynch v. Donnelly, No. 82-1256 (Mar. 5, 1984), slip op. 4-8; Marsh v.
Chambers, 463 U.S. 783, 787-791 (1983)), or to demonstrate that such
involvement had fostered a controversy the Clause was meant to
resolve. History similarly has been invoked as dispositive in regard
to the acceptability of the death penalty under the Eighth Amendment:
How could framers who before, during and after that Amendment's
adoption regularly acquiesced in the application of capital punishment
be taken to have condemned this practice as cruel and unusual? See
Gregg v. Georgia, 428 U.S. 153, 176-177 (1976) (plurality opinion);
Furman v. Georgia, 408 U.S. 238, 380 (1972) (Burger, C.J.,
dissenting); id. at 408 n.6 (Blackmun, J., dissenting). History has
regularly been invoked to elucidate the meaning of the Fifth
Amendment's guarantee against self-incrimination (see Kastiger v.
United States, 406 U.S. 441, 443-447 (1972); Miranda v. Arizona, 384
U.S. 436, 458-460 (1966)), and the Sixth Amendment's guarantee of
trial by jury. See Williams v. Florida, 399 U.S. 78, 86-103 (1970);
Duncan v. Louisiana, 391 U.S. 145, 151-154 (1968). In all these
instances the use of history was straightforward. The purpose for
which history is invoked in Roe v. Wade, by contrast, is far from
evident. The Court's opinion appears to acknowledge the relevance of
history, yet it reaches a conclusion in direct variance with the
historical facts recited.
b. History is invoked in another way to take account of
developments in society and the law. Such an appraoch has seemed
particularly plausible in determining the application of the Fourth
Amendment's protections to such undreamt-of developments as
wire-tapping, electronic surveillance, the searches of automobiles and
airplanes. History in this sense appears as a vector, in which the
original understanding is seen as the point of departure for
developing values implied and the inchoate at the point of origin.
But whether the vector is held to lead to a right to attend criminal
trials (Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 557-580
(1980)) or a right to travel (Shapiro v. Thompson, 394 U.S. 618, 630
(1969)), the Court has always taken pains to trace its point of origin
back to specific constitutional provisions by a route either
inferential or historical.
In Roe v. Wade, by contrast, the connections by either route were
wholly missing and the Court was forced to leap to its conclusion.
Certainly the course of legal attitudes and practice, "the compelling
traditions of the legal profession" (Rochin v. California, 342 U.S. at
171), permit no extrapolation from the past to the Court's conclusion
in Roe v. Wade. The story traced by the Court does not show a steady
and growing acceptance of a point of view until the practice in a few
jurisdictions can be characterized as anomalous. At most, the
historical account in Roe v. Wade shows an ebb and flow of
condemnation and concern about the practice of abortion. More
accurately, it would seem that the passage of the Fourteenth Amendment
roughly coincided with the rise of particular stringency in abortion
laws, and that, between 1868 and 1973, such stringent laws appeared as
a general feature of the legal landscape, representing by the Court's
own count the policy "in a majority of the States." 410 U.S. at 118.
This historical trajectory does not support the conclusion for which
it was adduced.
c. There remains the inferential route, by which a specific
constitutional text is seen to harbor the germ of a theory that
establishes a general and fundamental right. The classic statement of
this line of reasoning is found in Justice Harlan's dissent in Poe v.
Ulman, 367 U.S. at 541-543. He wrote that "the liberty guaranteed by
the Due Process Clause * * * is not a series of isolated points
pricked out in terms of" the particular rights enumerated in the first
eight Amendments. Rather, he said, liberty "is a rational continuum
which, broadly speaking, includes a freedom from all substantial
arbitrary impositions and purposeless restraints" (ibid.).
As Justice Harlan was at pains to insist, however, even this
process of inferential extrapolation is directly rooted in textually
specified constitutional values. The same connection "to what went
before" is insisted upon in Griswold v. Connecticut, 381 U.S. 479,
484-485 (1965). The invocation in Roe v. Wade of both the particular
concept of privacy and of this general mode of constitutional
analysis, far from being anchored in text, history, or precedent, is
an abrupt departure from the Court's prior decisions. /6/ Indeed, all
of the "privacy" cases that the Court cited in Roe v. Wade were
applications of accepted principles, whether of equal protection /7/
or of freedom of expression at the core of the First Amendment. /8/
Neither equal protection, nor intrusion upon the home, nor freedom to
think or promulgate ideas is involved in laws regulating abortion.
d. There can be no doubt of the strength of the conviction held by
some that free access to abortion is a fundamental expression of
individual freedom, and that such freedom is the first principle of a
just society. A conviction of self-evidence may well accompany a view
so strongly held. Yet this conviction does not constitute
constitutional argument. It is at best an intuition based in
controversial moral and social theories of the good life and of an
individual's situation in society, theories "which a large part of the
country does not entertain." Lochner v. New York, 198 U.S. at 75
(Holmes, J., dissenting). And when controversial but seemingly
self-evident convictions are translated directly into constitutional
doctrine, we risk repeating the whole lamentable story surrounding
Lochner for which Justice Holmes (id. at 76) composed the epitaph at
its birth: "(The Constituion) is made for people of fundamentally
differing views, and the accident of our finding certain opinions
natural and familiar or novel and even shocking ought not to conclude
our judgment upon the question whether statutes embodying them
conflict with the Constitution of the United States."
As in logic contradictory premises can be used to prove anything,
so in constitutional law principles that are ill-founded can be used
to justify any conclusion, and thus rob the law of its intrinsically
compelling force. And when constitutional law, which is above
ordinary politics, seeks to settle disputes of value and vision which
are the stuff of politics, both law and politics are more not less
subject to the kind of intense pressures which have characterized the
abortion debate since Roe v. Wade.
CONCLUSION
The portions of the court of appeals' judgments that invalidate
appellants' abortion regulations should be reversed.
Respectfully submitted.
CHARLES FRIED
Acting Solicitor General
RICHARD K. WILLARD
Acting Assistant Attorney General
CAROLYN B. KUHL
Deputy Assistant Attorney General
JOHN F. CORDES
JOHN M. ROGERS
Attorneys
JULY 1985
/1/ The district court had granted a preliminary injunction as to
one section of the stattue, but the State conceded the invalidity of
that section on appeal (84-495 J.S. App. 18a, 33a-34a).
/2/ Appellants suggest (84-1379 J.S. 43) that, while the
controversy as to the old version of Section 6(4) is moot, the
controversy as to its current version remains alive, since the court
of appeals' rationale for invalidating the former would also apply to
the latter. Although we sympathize with appellants' desire to obtain
guidance from this Court, we cannot agree with this submission. The
court of appeals expressly "decline(d) to evaluate (the)
constitutionality" of the current provision (84-1379 J.S. App. 9), and
this Court "reviews judgments, not statements in opinions" (Black v.
Cutter Laboratories, 351 U.S. 292, 297 (1956)).
/3/ In any event, the court of appeals wholly ignored the fact that
the stautte's allegedly improper definition of "fetus" was repealed in
September 1983. Since then, the statute has defined "fetus" as "an
individual organism of the species homo sapiens from fertilization
until live birth" (84-1379 J.S. App. 60). It cannot seriously be
contended that this definition impermissibly adopts any particular
"theory of life" (Roe v. Wade, 410 U.S. at 162).
/4/ This judgment is shared by a broad spectrum of constitutional
scholars. See, e.g., J. H. Ely, Democracy and Distrust 2-3, 248 n.52
(1980); Gunther, Some Reflections on the Judicial Role:
Distinctions, Roots, and Prospects, 1979 Wash. U.L.Q. 817, 819; Burt,
The Constitution of the Family, 1979 Sup. Ct. Rev. 329, 371-373; A
Bickel, The Morality of Consent 27-29 (1975); Epstein, Substantive
Due Process by Any Other Name: The Abortion Cases, 1973 Sup. Ct. Rev.
159; Wellington, Common Law Rules and Constitutional Double
Standards: Some Notes on Adjudication, 83 Yale L.J. 221, 297-311
(1973); Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82
Yale L.J. 920 (1973).
/5/ See, e.g., Fairman, Does the Fourteenth Amendment Incorporate
the Bill of Rights? The Original Understanding, 2 Stan. L. Rev. 5
(1949).
/6/ As Dean Ely explained, this Court's invalidation in Griswold of
a statute regulating the use of contraceptives, as opposed to their
manufacture or sale, indicated an underlying concern that enforcement
of the statute "would have been virtually impossible without the most
outrageous sort of governmental prying into the privacy of the home."
82 Yale L.J. at 929-930 (emphasis in original). statute limiting a
medical procedure performed by a doctor in a clinic or hospital is
simply not analogous; abortion statutes could obviously be enforced
without the necessity of repulsive searches. Fourth Amendment
policies accordingly provide no support for the holding in Roe v.
Wade.
/7/ Skinner v. Oklahoma, 316 U.S. 535, 538 (1942) (criminal
sterilization act violated equal protection by distinguishing without
an adequate basis between persons convicted of larceny and
embezzlement); Loving v. Virginia, 388 U.S. 1, 12 (1967) (statute
prohibiting interracial marriages involved "invidious racial
discriminations"); Eisenstadt v. Baird, 405 U.S. 438, 446-455 (1972)
(statute prohibiting distribution of contraceptives violated equal
protection by treating married and unmarried women differently without
a rational basis).
/8/ Meyer v. Nebraska, 262 U.S. 390, 400 (1923) (invalidating law
prohibiting the teaching of foreign languages in private elementary
schools because "(m)ere knowledge of the German language cannot
reasonably be regarded as harmful"); Pierce v. Society of Sisters,
268 U.S. 510 (1925) (invalidating statute requiring all children to
attend public schools); Prince v. Massachusetts, 321 U.S. 158, 164
(1944) (prosecution of Jehovah's Witness under statute prohibiting
sale by minors of periodicals implicates but does not violate Freedom
of religion); Stanley v. Georgia, 394 U.S. 557 (1969) (reversing
criminal conviction for mere possession of films in defendant's home).